[Congressional Record Volume 152, Number 70 (Tuesday, June 6, 2006)]
[House]
[Pages H3388-H3391]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               BROADCAST DECENCY ENFORCEMENT ACT OF 2005

  Mr. UPTON. Mr. Speaker, I move to suspend the rules and pass the 
Senate bill (S. 193) to increase the penalties for violations by 
television and radio broadcasters of the prohibitions against 
transmission of obscene, indecent, and profane language.
  The Clerk read as follows:

                                 S. 193

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Broadcast Decency 
     Enforcement Act of 2005''.

     SEC. 2. INCREASE IN PENALTIES FOR OBSCENE, INDECENT, AND 
                   PROFANE BROADCASTS.

       Section 503(b)(2) of the Communications Act of 1934 (47 
     U.S.C. 503(b)(2)) is amended--
       (1) by redesignating subparagraphs (C) and (D) as 
     subparagraphs (D) and (E), respectively;
       (2) by inserting after subparagraph (B) the following new 
     subparagraph:
       ``(C) Notwithstanding subparagraph (A), if the violator 
     is--
       ``(i)(I) a broadcast station licensee or permittee; or
       ``(II) an applicant for any broadcast license, permit, 
     certificate, or other instrument or authorization issued by 
     the Commission; and
       ``(ii) determined by the Commission under paragraph (1) to 
     have broadcast obscene, indecent, or profane language, the 
     amount of any forfeiture penalty determined under this 
     subsection shall not exceed $325,000 for each violation or 
     each day of a continuing violation, except that the amount 
     assessed for any continuing violation shall not exceed a 
     total of $3,000,000 for any single act or failure to act.''; 
     and
       (3) in subparagraph (D), as redesignated by paragraph (1), 
     by striking ``subparagraph (A) or (B)'' and inserting 
     ``subparagraph (A), (B), or (C)''.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Michigan (Mr. Upton) and the gentleman from Massachusetts (Mr. Markey) 
each will control 20 minutes.
  The Chair recognizes the gentleman from Michigan.


                             General Leave

  Mr. UPTON. Mr. Speaker, I again ask unanimous consent that all 
Members may have 5 legislative days within which to revise and extend 
their remarks on this legislation and to insert extraneous material on 
the bill.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Michigan?
  There was no objection.
  Mr. UPTON. Mr. Speaker, I yield myself such time as I may consume, 
and I rise in support of S. 193 the Broadcast Decency Enforcement Act 
of 2005. This legislation is virtually identical to H.R. 3717, as 
introduced by my good friend, Mr. Markey, Chairman Barton, Mr. Dingell, 
and myself in the last Congress on January 21, 2004, which I would note 
was about a week and a half before the infamous Janet Jackson/Justin 
Timberlake Superbowl half-time show. That legislation was the 
predecessor of H.R. 310, which the House passed in this Congress on 
February 16, 2005 by a vote of 389-38.
  While S. 193 omits a number of important provisions contained in H.R. 
310, I believe that passage of this legislation will help us achieve 
our ultimate goal, which is to help ensure American families that 
broadcast television and radio programming will be free of indecency, 
obscenity, and profanity at times when their children are likely to

[[Page H3389]]

be tuning in, whether that be in the living room watching TV or in the 
car listening to the radio.
  This is about protecting the public airwaves, and Congress has given 
the FCC the responsibility to help protect American families in that 
regard. The courts have upheld the constitutionality of our broadcast 
decency laws, although they have limited the FCC's enforcement to only 
that content which is aired between the hours of 6 in the morning and 
10 at night, when children are most likely to be listening or viewing.
  What compelled me to act on this, even before the infamous half-time 
show, was a review of the Notices of Apparent Liability issued by the 
FCC in but a few of its radio broadcast indecency cases. And, of 
course, each case had a transcript of the content that was at issue.
  My friends, public decorum on this floor precludes me from reading 
those transcripts out loud, but what I will say is that what I read was 
disgusting, vile, and had no place on our public airwaves.
  I was glad to see my colleagues, Mr. Markey, Mr. Barton, former 
Congressman Tauzin, and Mr. Dingell agreed with me as well. These cases 
included descriptions of people having sex in Saint Patrick's 
Cathedral, lewd scenes of a daughter having oral sex with her dad, and 
a case in which radio hosts interviewed high school girls about their 
sexual activities with crude reference to oral sex, with the sound 
effects to match, and I could go on and on and on.
  More recently, on March 15, 2006, the FCC issued a Notice of Apparent 
Liability regarding a scene in a broadcast network program which 
graphically depicted teenage boys and girls in various stages of 
undress participating in a sexual orgy. Again, I will not describe 
everything that was said there, but I can say that the program aired at 
9:00 P.M. in the central and mountain time zones and it drew a 
significant number of citizen complaints from across the country.
  We have no place for that on the public airwaves. And while I am not 
a lawyer, I would hope it would be beyond dispute that such content is 
indecent under the law and does not belong on the public airwaves, 
particularly at times when children might be viewing or listening.
  In many of those most egregious cases, the radio and TV stations are 
owned by huge media conglomerates, but the current statutory maximum 
fine which the FCC can impose upon them for indecency violations 
remains at $32,500. In the words of former FCC Chairman Michael Powell, 
he said this, ``Some of these fines are peanuts. They are peanuts 
because they haven't been touched in decades. They are just the cost of 
doing business to a lot of producers. And that has to change.''
  Well, Mr. Speaker, this legislation in fact changes that. We have a 
chance to increase by tenfold the existing statutory maximum penalty 
for indecency violations. The bill would raise the cap per violation 
from $32,500 to $325,000.
  I believe that broadcasters do have a special place in our society, 
given that they are stewards of the public airwaves. And with that 
stewardship comes the responsibility, including adherence to our 
Nation's indecency laws. Most broadcasters are responsible, and many 
recently have taken steps to redouble their commitment to keeping 
indecency off the public airwaves. But for those broadcasters who are 
less than responsible, the FCC needs to have the teeth to enforce the 
law, and this bill, S. 193, will give the FCC that teeth.
  The bottom line is this: We do not change the standards that the 
courts have affirmed are permissible for the public airwaves, 
particularly when children might be listening. This bill simply raises 
the fine on the violators of the existing standards, and it needs to be 
passed tomorrow.
  Mr. Speaker, I reserve the balance of my time.
  Mr. MARKEY. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I want to commend Chairman Upton for this legislation 
and commend as well Chairman Barton, Ranking Member Dingell for the 
cooperative bipartisan way this bill has been has been handled.
  Mr. Speaker, this legislation, S. 193, is similar to legislation that 
previously passed the House. It was approved by the Senate unanimously 
a few weeks ago. This bill, simply put, raises the cap on possible 
fines that the FCC can levy for violations of its broadcast indecency 
rules from $32,500 per broadcast licensee to $325,000.
  I would like to emphasize that this legislation does not make 
indecent broadcast illegal, nor does the bill define what is or is not 
indecent material. Indecent content aired over broadcast TV and radio 
is already illegal between the hours of 6 a.m. and 10 p.m. What speech 
constitutes indecent material will be left to the FCC and the courts to 
determine.
  Again, this legislation simply updates the statute with respect to 
the amount of money that the FCC can levy as a fine for violations of 
its rules, and establishes procedures for considering broadcast license 
awards, renewal, or revocation when repeated violations are found.
  I think this legislation has obvious broad support on both sides of 
the aisle because it merely increases the amount of fines available to 
the FCC to enforce its existing rules. I intend to support it, and 
again commend Chairman Upton, Chairman Barton, and Ranking Member John 
Dingell, and our other colleagues on this bill as well.
  Mr. Speaker, I reserve the balance of my time.
  Mr. UPTON. Mr. Speaker, I yield 3 minutes to the gentleman from 
Oregon (Mr. Walden).
  (Mr. WALDEN of Oregon asked and was given permission to revise and 
extend his remarks.)
  Mr. WALDEN of Oregon. Mr. Speaker, I plan to support this 
legislation, as I supported the House legislation, to clear up the 
public's airwaves and punish those broadcasters who violate the law and 
the standards of the community that they are licensed to serve.
  I am perhaps the only Member of the House of Representatives who is a 
broadcast licensee. For 20 years, my wife and I have owned and operated 
radio stations in Oregon. I grew up in a pioneer broadcast family. I 
rise tonight, however, to express concern about the FCC's recent 
decisions regarding indecency and profanity.
  Frankly, the decisions of the Commission leave me and many of my 
colleagues in the broadcast world a bit confused about where the 
boundaries are, which has been a problem for the Commission for many 
years. The Commission found that certain words, which we would find 
very offensive, could be used in the context of airing Saving Private 
Ryan. However, perhaps words that would be found less offensive could 
not be used in an episode of NYPD Blue.
  Mr. Chairman, given the tenfold increase in fines that this 
legislation authorizes, I think it is exceedingly important for 
broadcast licensees to have a clear understanding of the rules from the 
FCC. So I would ask you to lend your good office to encourage the FCC 
to achieve clarification in these areas.
  I think it is also important, Mr. Speaker, that Americans understand 
what we are doing here tonight only affects over-the-air public 
airwaves, radio and television broadcast licensees. If you think that 
the TV in your family room is suddenly going to have every program 
cleaned up, you are mistaken, because we are not allowed at this point 
to deal with issues involving cable television or satellite television 
or satellite radio. Indeed, when we began having hearings on this very 
issue of profanity in the radio broadcast spectrum, one of the 
individuals who probably caused the most ruckus on the public airwaves 
shifted over to satellite radio so that he could carry on there 
unfettered.
  I realize these are subscription services, but I think for many 
Americans, when they catch cable television in their homes, they don't 
really differentiate any more about the four channels that may be 
public broadcast channels, over-the-air broadcasts, from those that are 
on up the dial for the next 400.

                              {time}  2030

  So they may wonder why it is that we can take this action tonight 
against licensees of the Federal Government. Now, cable services do 
have the ability to regulate individually within the home and block 
certain programs, so perhaps parents will take it upon themselves to 
self-regulate the home.
  Meanwhile, broadcasters are going to need clarification when the 
fines are

[[Page H3390]]

going to be increased ten-fold, and not all broadcasters are parts of 
conglomerates. Some are mom-and-pop operators in small communities 
across America who rise to the challenges of serving their communities 
in times of natural disaster and just in terms of community events. 
They will need this guidance because a fine of $32,500 today on the 
books could bankrupt many of those small, independent broadcasters.
  Mr. Speaker, I hope you will work to clarify this so the broadcasters 
know the rules under which they need to operate and do not violate them 
unintentionally.
  Mr. UPTON. Mr. Speaker, will the gentleman yield?
  Mr. WALDEN of Oregon. I yield to the gentleman from Michigan.
  Mr. UPTON. Mr. Speaker, I look forward to working with the gentleman 
to clarify the rules. It is very important that broadcasters know 
precisely what the rules are. We can do a better job.
  We are taking the Senate legislation as it was passed. I think we had 
some better language in the House. I look forward to working with you 
and other Members on both sides of the aisle to make this a bipartisan 
effort and lay those ground rules out so everyone, whether it is 
listeners or broadcasters, knows precisely the rules of the road and 
hopefully will not get into trouble for it. I thank the gentleman for 
his input all along in the process.
  Mr. WALDEN of Oregon. Mr. Speaker, I thank the chairman for his 
leadership in this area as we clean up the public air waves and also 
come to standards that are clearly understood by all so that 
inadvertent violations do not occur. And also, a recognition of small-
market broadcasters versus the big major ones where even $300,000 may 
seem insignificant in their revenue stream.
  Mr. MARKEY. Mr. Speaker, I yield 3 minutes to the gentlewoman from 
California (Ms. Watson).
  Ms. WATSON. Mr. Speaker, I rise today for the third time in 3 years 
to speak out against what I consider the wrong approach to media 
indecency, and that is increasing FCC fines.
  S. 193, the Broadcast Decency Enforcement Act, represents a weak 
attempt at improving our media, an uncreative policy that will harm our 
creative community.
  Mr. Speaker, we all believe in the need to reduce indecency in media. 
Parents should not have to worry about what they might encounter with 
their children when they sit down together to watch TV. But indecency 
fines will not solve this problem because they do not address its root 
cause: media concentration and a lack of competition.
  When big media gets bigger, conglomerates move further away from 
quality programming and the principles of diversity, localism and 
competition, crucial for the service of public interest. Will monetary 
penalties encourage return to these principles? I sincerely doubt it.
  Instead, we need a competitive media environment that provides 
viewers and listeners with real choices in their entertainment. We need 
programming that respects the public and performers rather than 
catering to the lowest common denominator and dumbing down our culture. 
A consolidated media market controlled by a profit-driven conglomerate 
is bound to offer cheaply made, shocking entertainment for the sake of 
increasing viewership and making a spectacle of itself.
  Our artists need to be able to work in an environment where 
creativity is honored. This will never happen under a system of 
censorship. Creators cannot read the FCC's minds on their definition of 
indecency. We must work with our creative community to encourage 
quality media content, not simply offer vague guidelines with high 
consequences.
  That is why I have supported making the fulfillment of public 
interest obligations an element of the broadcast licensees' renewal 
requirement and the restoration of the fairness doctrine. It is why I 
encourage the FCC to think about the impact that media consolidation 
has on media content and our national character as they begin rewriting 
their ownership rules, rules that upset millions of Americans and 
lawmakers on both sides of the aisle.
  Mr. Speaker, the indecent media culture we witness today will not be 
modified by simply increasing fines. It must be transformed through 
less media consolidation and greater requirements to serve the public 
interest.
  I am sorely disappointed that both Houses have chosen the easy route 
of increasing fines rather than making a serious attempt to curb 
indecency by addressing the major problems in our media.
  So I would urge my colleagues to vote against this bill, and let's 
try over again.
  Mr. MARKEY. Mr. Speaker, I have no other requests for time, and I 
yield back the balance of my time.
  Mr. UPTON. Mr. Speaker, I yield myself such time as I may consume.
  I would just like to make a couple of closing comments. Again, I 
thank the gentleman from Massachusetts for his help on this from the 
start. It was in December 2003 I called him at his home in 
Massachusetts and asked if he would like to co-author this with me. 
With that support came the support of then-Chairman Tauzin and the 
gentleman from the great State of Michigan (Mr. Dingell).
  The four of us introduced this legislation. A week and a half before 
the Super Bowl, we had our first hearing, in fact, before the Super 
Bowl came about where it got a lot of publicity. I know all of us on 
the committee and subcommittee when we held hearings were absolutely 
disgusted with some of the trash that was said on the radio that was 
fined. I would like to use a different word than ``trash'' or 
``stuff,'' but we would probably get fined for doing that on the House 
floor, and maybe our words would get taken down. I'm not sure. But it 
was awful, particularly knowing that kids were listening to that kind 
of talk.
  It was a bipartisan effort. As I recall, I think we had a vote of 49-
1 to get that legislation through. I think the bipartisan spirit we 
have had from the beginning, and I think our House bill was a little 
better than what the Senate has here in S. 193, but we need to get it 
done. That is why I was glad to work with the Senators on both sides of 
the aisle. And I would note this, not a single Senator, not a single 
one from any State, opposed the legislation that we are going to pass 
with this bill, S. 193.
  Mr. DINGELL. Mr. Speaker, I rise in support of S. 193, the 
``Broadcast Decency Enforcement Act of 2005''.
  More than a year ago, the House overwhelmingly passed a broad measure 
to ensure that viewers and listeners would be properly protected from 
indecent broadcasts over the public airwaves. The Senate has now sent 
back just one piece of that more comprehensive measure.
  The legislation before us will raise the maximum fine for indecent 
broadcasts tenfold, from $32,500 to $325,000. Increasing the amount 
that the Federal Communications Commission (FCC) can fine a company 
that broadcasts obscene or indecent programming is important, 
particularly given the growing size of these companies due to media 
consolidation.
  Raising the level of potential fines is a good first step, so I 
support this measure. But it falls short of being a comprehensive 
solution to hold the FCC's feet to the fire on this issue.
  People who are offended by indecent broadcasts on the public airwaves 
deserve prompt and thorough consideration of their complaints. 
Previously, the FCC had let some complaints languish for years, 
resulting in their dismissal. Unfortunately, delays continue. The 
viewing and listening public still does not receive prompt evaluation 
of their complaints, and the Commission's treatment of many consumer 
indecency complaints remains haphazard.
  The House last year approved a much stronger and more comprehensive 
bill by a vote of 389 to 38. The bill would have increased the fines to 
$500,000 and given the FCC additional tools to fight indecency over the 
public airwaves. More importantly, it would have required the FCC to 
act on consumer complaints within a specific timeframe. It would have 
also made the Commission more accountable by requiring regular reports 
to Congress on its enforcement activities. This reporting requirement 
would have ensured that Congress was aware of any FCC action or 
inaction regarding complaints from our constituents regarding indecent 
broadcasts. The Senate bill does not take these steps to make the 
Commission more responsive or accountable.
  Consumers would have been better served if the House and Senate had 
negotiated a compromise bill that included several of the provisions 
from the House bill to keep the FCC accountable. Nonetheless, S. 193 is 
a step in the right direction. As such, I support this bill and urge my 
colleagues to do so as well.
  Mr. GENE GREEN of Texas. Mr. Speaker, most of us remember Super Bowl 
XXXVIII, but

[[Page H3391]]

not for the reason that most of us Houstonians would like.
  The game was a great showcase for Houston and one of the best in 
Super Bowl history. The New England Patriots edged out the Carolina 
Panthers by a score of 32 to 29 in a wild fourth quarter that ended 
with an Adam Vinatieri field goal with four seconds left.
  Unfortunately, Americans remember that game for the offensive 
halftime show featuring Justin Timberlake and Janet Jackson.
  Performers can do whatever they like on their albums, or on 
subscription services like HBO, and as a Member of Congress I swore an 
oath to uphold the Constitution and protect all Americans' First 
Amendment rights of freedom of speech and expression.
  But public obscenity purely designed to shock people has no place on 
primetime broadcast television using the public's airwaves.
  Almost every American home has a television and there is nothing a 
parent can do to protect against indecency on broadcast radio or 
television.
  American families should have the right to watch the Super Bowl 
without expecting indecent performances, and the current FCC fines were 
clearly not a deterrent. Therefore, this legislation increases the 
fines for broadcast indecency by 10 times.
  However, the Commission should only use this power against 
blameworthy broadcasters. A $325,000 fine is a much bigger stick for 
the FCC to use against indecent broadcasters, so the level of 
responsibility of the FCC must also increase.
  When an independent affiliate airs network programming that turns out 
to be indecent, the FCC should only punish an affiliate if there was a 
reasonable opportunity to review questionable taped material or reason 
to know that such material was likely.
  In cases where only the network knows what is going on the air, it 
stands to reason that only the network should bear the burden for such 
violations.
  Section 503(b)(2)(D) allows the FCC to consider the circumstances of 
a violation in determining the amount of a penalty. The Commission 
should use that power wisely and recognize that you cannot deter 
indecent programming by fining independent affiliates with no control 
over the content.
  Mr. GONZALEZ. Mr. Speaker, I rise to express my support for S. 193, 
The Broadcast Decency Enforcement Act of 2006, our constituents should 
expect that when they turn on their local broadcast television and 
radio stations, they will not be subjected to obscene, indecent, and 
profane material. I believe this legislation does take the necessary 
steps to ensure that there is a sufficient deterrence to broadcasters 
who are careless as to their responsibilities to the general public.
  But, Mr. Speaker I am concerned that this legislation may fail to 
take into sufficient account the economic conditions of a broadcaster. 
There are numerous small broadcasters who serve small or niche market. 
This is particularly true of minority owned stations or stations that 
target the minority viewers. I urge the Federal Communications 
Commission when it uses its power under Section 503(b)(2)(D) of the 
Communications Act of 1934 to consider the size of the market that the 
broadcaster serves and its ability to pay when assessing a fine for 
airing questionable material, as this body approved when it passed the 
companion House legislation to this bill--H.R. 310 several weeks ago.
  I also believe that the Commission should consider the source of the 
obscene, indecent, or profane programming when levying a fine. When a 
local affiliate not owned or controlled by a network airs questionable 
programming supplied by the network, the FCC should penalize the party 
who was really at fault. If the local affiliate was not given a 
reasonable time to review an offensive taped or scripted program before 
it aired, or if it aired an offensive live or unscripted program 
without reason to believe it was offensive, the fault arguably lies not 
with the local affiliate but with the network that supplied the 
program. Section 503(b)(2)(D) allows the Commission to adjust a penalty 
based on the culpability of the violator, the circumstances of the 
violation, or any other matters as justice requires. I believe that a 
situation where a local affiliate was left ``in the dark'' about 
obscene, indecent, or profane material in a program from the network 
calls for just such an adjustment.
  Thank you again, Mr. Speaker, for moving this important legislation 
forward.
  Mr. ACKERMAN. Mr. Speaker, I am continually amazed that defending our 
Constitutionally guaranteed freedom of speech is such a lonely job in 
the House of Representatives. I believe in decency and protecting 
children as much as any Member, but what is at stake here is freedom of 
speech and whether it will be nibbled to death by election-minded 
politicians and self-righteous pietists.
  If you don't believe that this so-called Broadcast Decency Act will 
have a chilling effect on free speech, let's take a look at a few 
examples of how the culture of censorship has spread to the airwaves 
over the past few years.
  Numerous ABC affiliates refused to commemorate Veteran's Day by 
airing the movie ``Saving Private Ryan'' because they feared an FCC 
fine. Ironically, ABC had previously aired unedited versions of the 
WorId War II movie in 2001 and 2002 without incident.
  Many PBS stations refused to air an episode of the children's show 
``Postcards with Buster'' because Buster, an 8-year-old bunny, learned 
how to make maple syrup from a Vermont family with two mothers.
  CBS refused to air a political advertisement during the Super Bowl 
because it was critical of President Bush's role in creating the 
Federal deficit.
  CBS and NBC refused to run a 30-second ad from the United Church of 
Christ because it suggested that gay couples were welcome to their 
church, and the networks felt that it was ``too controversial'' to air.
  This is how free speech dies: with the pruning of self-satisfied 
politicians and the whimpering of fearful citizens. These are just a 
few examples that occurred before this ill-conceived bill has even been 
signed into law. Broadcasters will certainly increase these practices 
and bite their tongues when ``decency'' enforcers can slap them with a 
$325,000 fine, multiplied by numerous stations. How much farther down 
the slippery slope of censorship will we slide?
  Even more galling is that this free-speech assault is coming from a 
mere fragment of the public, one organization--the Parents Television 
Council--representing the religious right and their far right-wing 
political agenda. This organization, which is responsible for 99.9 
percent of the so-called indecency complaints filed with the FCC, 
boasts ``nearly 1 million members.'' True or not, while that may be a 
sizable number for an individual organization, when compared to the 
almost 300 million people currently living in the United States, it 
really amounts to a small handful of people--less than one percent. Why 
should this tiny population of scolds be allowed to censure what the 
remaining 99.66 percent of us listen to?
  It is not for this Congress to put limits on free speech. The public 
decides what they want to listen to and what they want to hear. They 
can change the channel, they can change the station, they can turn it 
off. It is not just speech that we agree with and we think is right 
that we have to tolerate. The true test of freedom of speech is if we 
tolerate ugly speech, obnoxious speech, and speech that we disagree 
with.
  We need to defend our Constitution. We need to defend freedom of 
speech, and that is really what is at stake here. Passing this bill is 
a huge mistake and this vote will mark a very dark day in American 
history. We are going down a slippery slope and no one can honestly say 
where it will stop. A vote for this bill is a frontal assault on our 
Constitution and the protections that it gives to the American people.
  Mr. Speaker, I for one will be voting against this bill, and I urge 
my colleagues to do the same.
  Mr. UPTON. Mr. Speaker, I urge all of my colleagues to support this 
when we take the vote, and I yield back the balance of my time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from Michigan (Mr. Upton) that the House suspend the rules 
and pass the Senate bill, S. 193.
  The question was taken.
  The SPEAKER pro tempore. In the opinion of the Chair, two-thirds of 
those present have voted in the affirmative.
  Mr. UPTON. Mr. Speaker, on that I demand the yeas and nays.
  The yeas and nays were ordered.
  The SPEAKER pro tempore. Pursuant to clause 8 of rule XX and the 
Chair's prior announcement, further proceedings on this question will 
be postponed.

                          ____________________